Welcome to the CLU-IN Internet Seminar

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Welcome to the CLU-IN Internet Seminar

• NARPM PresentsARARs for Protection of Ecological
  and Historical Resources
• Sponsored by EPA Office of Superfund Remediation
  and Technology Innovation
• Delivered March 22, 2011, 100 PM - 300 PM, EST
  (1800-2000 GMT)
• Instructors
• Bruce Pluta, U.S. EPA Region 3 (pluta.bruce_at_epa.go
  v or [phone])
• Simeon Hahn, NOAA, (Simeon.Hahn_at_noaa.gov or (215)
  814-5419)
• Moderator
• Jean Balent, U.S. EPA, Technology Innovation and
  Field Services Division (balent.jean_at_epa.gov or
  [phone])

Visit the Clean Up Information Network online at
www.cluin.org
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Housekeeping

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• This event is being recorded
• Archives accessed for free http//cluin.org/live/a
  rchive/

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Original Presentations available at
http//www.epanarpm.org/
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Presenters David M. Buxbaum, EPA Region 4,
Office of Regional Counsel Hilary Thornton, EPA
Region 3, RPM Bruce Pluta, EPA Region 3,
Biological Technical Assistance Group Barbara
Rudnick, EPA Region 3, Environmental Assessment
and Innovation Division Karen Abrams, NOAA, NMFS
Office of Habitat Conservation Ann M. Garrett,
NOAA, National Marine Fisheries Service Greg
Masson, U.S. Fish and Wildlife Service Tod
Siegal, EPA OGC
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CERCLA ARARs 101 Overview on Identification,
Communication, Analysis and Compliance
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CERCLA Degree of Cleanup

• Under Section 121(d)(1) remedial actions shall
  attain a degree of cleanup which assures
  protection of human health and the environment.
• Remedial actions shall attain ARARs any
  standard, requirement, criteria, or limitation
  under federal environmental law or more stringent
  promulgated standard, requirement, criteria or
  limitation under State environmental or facility
  siting law that is legally applicable to the
  hazardous substance (or pollutant or contaminant)
  concerned or is relevant and appropriate under
  the circumstances of the release.
• Remedy shall attain ARARs unless in limited
  circumstances it is determined one of the waivers
  specified in Section 121(d)(4) can be invoked.
  See also 40 CFR 300.430(f)(1)(ii)(B) and (C)

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CERCLA Section 121(d)(2)(A)

• (d) Degree of cleanup
• (1) Remedial actions selected under this section
  or otherwise required or agreed to by the
  President under this chapter shall attain a
  degree of cleanup of hazardous substances,
  pollutants, and contaminants released into the
  environment and of control of further release at
  a minimum which assures protection of human
  health and the environment. Such remedial actions
  shall be relevant and appropriate under the
  circumstances presented by the release or
  threatened release of such substance, pollutant,
  or contaminant.
• (2) (A) With respect to any hazardous substance,
  pollutant or contaminant that will remain onsite,
  if
• (i) any standard, requirement, criteria, or
  limitation under any Federal environmental law,
  including, but not limited to, the Toxic
  Substances Control Act 15 U.S.C. 2601 et seq.,
  the Safe Drinking Water Act 42 U.S.C. 300f et
  seq., the Clean Air Act 42 U.S.C. 7401 et
  seq., the Clean Water Act 33 U.S.C. 1251 et
  seq., the Marine Protection, Research and
  Sanctuaries Act 16 U.S.C. 1431 et seq., 1447 et
  seq., 33 U.S.C. 1401 et seq., 2801 et seq., or
  the Solid Waste Disposal Act 42 U.S.C. 6901 et
  seq. or
• (ii) any promulgated standard, requirement,
  criteria, or limitation under a State
  environmental or facility siting law that is more
  stringent than any Federal standard, requirement,
  criteria, or limitation, including each such
  State standard, requirement, criteria, or
  limitation contained in a program approved,
  authorized or delegated by the Administrator
  under a statute cited in subparagraph (A), and
  that has been identified to the President by the
  State in a timely manner,
• is legally applicable to the hazardous substance
  or pollutant or contaminant concerned or is
  relevant and appropriate under the circumstances
  of the release or threatened release of such
  hazardous substance or pollutant or contaminant,
  the remedial action selected under section 9604
  of this title or secured under section 9606 of
  this title shall require, at the completion of
  the remedial action, a level or standard of
  control for such hazardous substance or pollutant
  or contaminant which at least attains such
  legally applicable or relevant and appropriate
  standard, requirement, criteria, or limitation.
  Such remedial action shall require a level or
  standard of control which at least attains
  Maximum Contaminant Level Goals established under
  the Safe Drinking Water Act 42 U.S.C. 300f et
  seq. and water quality criteria established
  under section 304 or 303 of the Clean Water Act
  33 U.S.C. 1314, 1313, where such goals or
  criteria are relevant and appropriate under the
  circumstances of the release or threatened
  release.

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ARARs Waivers under CERCLA

• (1) the preferred alternative is an interim
  measure and will become part of a total remedial
  action that will attain the ARAR
• (2) compliance with the requirement will result
  in greater risk to human health and the
  environment
• (3) compliance is technically impracticable from
  an engineering perspective
• (4) will attain a standard of performance that
  is equivalent to that required under the
  otherwise applicable standard, requirement, or
  limitation
• (5) with respect to state requirement, the state
  has not consistently applied the promulgated
  requirement in similar circumstances at other
  remedial action within the state or
• (6) for fund-financed actions, cost outweighs
  need for protection.

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ARAR Compliance under NCP

• Overall protection of human health and the
  environment and compliance with ARARs are
  threshold requirements that each remedial
  alternative must meet in order to be eligible for
  selection. Ref 40 CFR 300.430(f)(1)(i)(A)
• On-site remedial actions selected in a ROD must
  attain those ARARs that are identified at the
  time of ROD signature or provide grounds for a
  waiver. Ref 40 CFR 300.430(f)(1)(ii)(B)
• The ROD shall describe the federal and state
  ARARs that remedy will attain or will not meet,
  the waiver invoked, and the justification for
  invoking the waiver. Ref 40 CFR
  300.430(f)(5)(ii)(B) and (C)
• Removal actions shall comply with ARARs to the
  extent practicable considering the exigencies of
  the situation. Ref 40 CFR 300.415)(j)
• Consider urgency of the situation and scope of
  the removal action.

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ARARs Purpose

• ARARs Applicable or Relevant and
  Appropriate Requirements
• CERCLA 121(d) added by Congress with 1986 SARA
  which codifies EPAs approach to compliance with
  other laws.
• EPA uses standards from other environmental laws
  to help select cleanup levels and design response
  actions at CERCLA sites.
• ARARs are enforceable substantive standards,
  requirements, criteria or limitations borrowed
  from other federal or state environmental
  statutes and regulations.
• Compliance with ARARs often determines the
  cleanup standard at a site or certain
  requirements that the remedial approach must meet
  depending on the location or actions taken at the
  site.
• ARARs divided into three categories for ease of
  identification
• Chemical-specific
• Location-specific
• Action-specific

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Substantive v. Administrative

• On-site actions need only comply with
  substantive aspects of ARARs. Ref CERCLA
  121(d)(2)(A) and 121(e)(1)
• Off-site remedial action must comply with both
  substantive and administrative of applicable
  requirements, including obtaining permits etc.
• Administrative requirements are mechanisms that
  facilitate the effective implementation of the
  substantive requirements of a statute or
  regulation.
• Includes approval of, or consultation with
  regulatory agency, issuance of permits,
  documentation, reporting, recordkeeping, and
  enforcement.
• Consultation with other agency recommended
  (despite not required) for most Location-specific
  ARARs.
• Cleanup must comply with CERCLA administrative
  procedures for monitoring frequency, reporting,
  and oversight.

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Applicable Definition

• Applicable requirements means those cleanup
  standards, standards of control, and other
  substantive requirements, criteria or limitations
  promulgated under federal environmental or state
  environmental or facility siting laws that
  specifically address a hazardous substance,
  pollutant, contaminant, remedial action,
  location, or other circumstance found at a CERCLA
  site.
• Only those state standards that are identified
  by a state in a timely manner and that are more
  stringent than federal requirements may be
  applicable. 40 CFR 300.5
• A requirement is applicable if the specific terms
  or jurisdictional prerequisites of the law or
  regulation directly addresses the circumstances
  at the site. See 53 FR 51437 Dec.21, 1988

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Relevant and Appropriate Definition

• Relevant and appropriate requirements means
  those cleanup standards, standards of control,
  and other substantive requirements, criteria or
  limitations promulgated under federal
  environmental or state environmental or facility
  siting laws that, while not applicable to a
  hazardous substance, pollutant, contaminant,
  remedial action, location, or other circumstance
  found at a CERCLA site, address problems or
  situations sufficiently similar to those
  encountered at the CERCLA site that their use is
  well suited to the particular site.
• Only those state standards that are identified
  by a state in a timely manner and that are more
  stringent than federal requirements may be
  relevant and appropriate. 40 CFR 300.5

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(1) Chemical-specific ARARs

• Health- or risk-based numerical values or
  methodologies which when applied to site-specific
  conditions, result in the establishment of
  numeric values.
• These values establish an acceptable amount or
  concentration of a chemical that may remain in,
  or be discharged to, the ambient environment.
• Examples Safe Drinking Water Act MCLs for
  groundwater, Clean Water Act AWQC for surface
  water, State cleanup levels for soil.
• Identified early in the CERCLA process and used
  along with the Baseline Risk Assessment to
  determine the Contaminants of Concern.
• The lead agency shall Initiate the
  identification of potential federal and state
  ARARs, and as appropriate, other criteria,
  advisories, or guidance to be considered. Ref
  40 CFR 300.430(b)(2)(9)

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Role of ARARs in Cleanup Goals

• Cleanup goals establish acceptable exposure
  levels that are protective of human health and
  the environment.
• Developed considering chemical-specific ARARs and
  risk-based levels (for systemic toxicants and
  known or suspected carcinogens).
• For carcinogens, the 10-6 risk level shall be
  used as the point of departure for determining
  remediation goals for alternatives when
• ARARs are not available, or
• ARARs not sufficiently protective because of the
  presence of multiple contaminants at a site or
  multiple pathways of exposure. Ref 40 CFR
  300.430(e)(2)(i)(A)(2)
• SDWA MCLGs (set above zero) or MCLs shall be
  attained for ground or surface waters that are a
  current or potential sources of drinking water,
  where relevant and appropriate under the
  circumstances of the release. Ref 40 CFR
  300.430(e)(2)(i)(B)

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(2) Location-specific ARARs

• Restrictions on hazardous substances or the
  conduct of response activities solely based on
  their location in a special geographic area.
• Examples of special locations include wetlands,
  watersheds, floodplains, sensitive
  ecosystems/habitats, coastal zones, historic
  places.
• Consider Endangered Species Act, National
  Historic Preservation Act, Wilderness Act,
  Coastal Zone Management Act, Wild and Scenic
  Rivers Act, as well as any implementing
  regulations, or Executive Orders (TBC).
• Identified during the Remedial Investigation
  phase Lead and support agency shall identify
  their respective potential ARARs related to the
  location of and contaminants at the site in a
  timely manner. Ref 40 CFR 300.430(d)(3)

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Location-specific ARARs/TBC
NHPA of 1966 Requires action take into account
effects on properties included or eligible for
National Register of Historic Places. Endangered
Species Act Requires action to avoid
jeopardizing the continued existence of listed
endangered or threatened species or modification
of their habitat. Fish and Wildlife Coordination
Act Requires action to protect fish and
wildlife from actions modifying streams or
lakes. Clean Water Act Section 404 Prohibits
discharge of dredged or fill material into
navigable waters and protection of aquatic
resources. Executive Order 11988 - Floodplain
Management and Executive Order 11990 Protection
of Wetlands. State siting requirements such as
No landfills in sensitive areas
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(3) Action-specific ARARs

• Technology- or activity-based requirements or
  limits on actions taken with respect to
  particular hazardous substance (includes many
  RCRA requirements).
• These requirements are triggered by a particular
  remedial activity (e.g., excavate, store, treat,
  dispose, emit, discharge, close, cap with waste
  in place, etc.)
• Identified in the Feasibility Study - Each
  remedial alternative will likely have some
  different Action-specific requirements.
• Requires knowledge of how other environmental
  programs such as RCRA, TSCA, CAA and CWA
  regulate.
• Action-specific requirements do not themselves
  determine the remedial alternative rather, they
  indicate how a selected alternative must be
  achieved.

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To be considered (TBC) category

• Under 40 CFR 300.400(g)(3) both lead and
  support agencies may, as appropriate identify
  other advisories, criteria, or guidance to be
  considered for a particular release.
• TBCs are not potential ARARs because neither
  promulgated nor enforceable. However, proposed
  standards may be TBC.
• Considerable agency discretion in identifying
  TBC.
• May be necessary to consult TBCs to interpret
  ARARs or to determine preliminary remediation
  goals when ARARs do not exist.
• Examples include health advisories, reference
  doses, EPA and State guidance (e.g. USACE
  Nationwide Permit 38).
• TBC must be attained to the same extent as ARARs
  if included in final ROD.

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Identification of ARARs/TBC

• The lead and support agencies shall identify
  requirements applicable to the release or
  remedial action. Ref 40 CFR 300.400(g)(1)
• If not applicable, then agencies shall evaluate
  whether requirement is relevant and
  appropriate. Ref 40 CFR 300.400(g)(2)
• Evaluation of shall consider eight factors in
  paragraphs (g)(2)(i) through (g)(2)(viii).
• Does requirement address problem or situation
  sufficiently similar to the circumstances of the
  release, or remedial action contemplated?
• During scoping of the RI the lead agency shall
  initiate identification of potential federal and
  state ARARs and, as appropriate other criteria,
  advisories, or guidance to be considered (TBC).
  Ref 40 CFR 300.430(b)(9)

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Basic Questions for I.D. of ARARs
Does the remedy restore groundwater and/or
cleanup contaminated soils, (i.e., meet
remediation goals in the media)? Is the remedy
performed in-situ or ex-situ with treatment
system? Is there a discharge into surface water
or emission into air from a treatment system?
Is the OU located within floodplain, wetland,
critical habitat, historical district, or other
special location? Does action generate waste
(i.e., removed from AOC or actively managed) or
leave waste-in-place (e.g., landfill
closure)? What type of remediation waste (e.g.,
RCRA hazardous, TSCA PCB, Rad, etc.) and
secondary waste (PPE, treatment residuals) is
generated? How is the waste managed (i.e.,
staged, stored, treated, capped, transported,
disposed, etc.)?
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Identification of Federal ARARs

• Based upon federal environmental laws and
  implementing regulations for media or waste type.
• Commonly used regulations include those from
• RCRA Subtitle C and D programs
• CWA NDPES and stormwater permits programs
• SDWA primary drinking water standards
• CAA NESHAPs for asbestos and radionuclides
• TSCA PCB disposal
• Typically, EPA contractor develops overly
  inclusive list with general citations that
  require review by RPM and attorney.
• Proper identification requires knowledge of how
  the federal environmental programs operate and
  Best Professional Judgment.
• EPA Compliance with Other Laws Manual provides
  many examples of ARARs from federal programs.

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Limitations for State ARARs

• CERCLA Section 121(d)(2)(A) establishes threshold
  requirements for state standard, requirement,
  criteria or limitation (including any siting
  standard).
• Under 40 CFR 300.400(g)(4) only state standards
  that meet following requirements can be potential
  ARARs
• 1) promulgated
• 2) identified by the state in a timely manner
  and
• 3) are more stringent than federal requirements.
• Requirement must be consistently applied by the
  state.
• General goals that express legislative intent but
  are non-binding are not ARARs.
• State guidelines, advisories will not be ARAR but
  may be to be considered (TBC) guidance. Ref 40
  CFR 300.400(g)(3)

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Limitations for State ARARs cont

• Promulgated means that the standards are of
  general applicability and are legally
  enforceable established by state legislature or
  agency rule making process.
• General applicability meant to preclude state
  requirements targeted for CERCLA sites
  requirement must apply to all remedial
  situations.
• Legally enforceable refers to state law or
  regulation which contains specific enforcement
  provisions or otherwise enforceable.
• More stringent meant to distinguish existing
  federal requirement or acknowledge exclusive
  state standard with no federal counterpart which
  is considered new requirement (e.g., FDEP soil
  cleanup target levels).
• NOTE State regulations under Federally
  authorized programs are considered to be federal
  requirements.

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Notification of ARARs

• The lead and support agencies shall identify
  their specific ARARs for a particular site. Ref
  40 CFR 300.400(g)(5)
• Agencies shall notify each other, in a timely
  manner as described in 40 CFR 300.515(d), of
  the requirements they have determined to be
  applicable or relevant and appropriate.
• When identifying a requirement as an ARAR, the
  lead and support agency shall include a citation
  to the statute or regulation from which the
  requirement is derived.
• Notification of ARARs shall be according to
  procedures and timeframes specified in 40 CFR
  300.515(d)(2) and (h)(2).
• EPA shall notify state if it does not agree that
  a certain standard is an ARAR.

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Communication on ARARs

• The lead and support agencies shall discuss
  potential ARARs/TBCs during the scoping of the
  RI/FS. Ref 40 CFR 300.515(h)(2)
• The lead agency shall request in writing
  potential ARARs/TBCs from the support agency no
  later than the time that site characterization
  data are available.
• Support agency shall communicate in writing those
  potential ARARs/TBCs to the lead agency.
• The lead agency shall request in writing the
  support agency to identify additional ARARs for
  remedial alternatives prior to comparative
  analysis in the FS.
• Agencies shall consult to ensure ARARs/TBC
  updated as needed.
• State is considered expert on its own laws and
  regulations.
• EPA shall respond to state comments or
  disagreements about state ARARs. Ref 40 CFR
  300.515(d)(3) and (4)

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Analysis of ARARs

• ARARs are to be compiled based upon site-specific
  conditions and circumstances of the release as
  well action contemplated.
• It is not sufficient to provide a general
  laundry list of statutes and regulations that
  might be ARARs.
• Once state and lead agency provides potential
  ARARs, EPA must evaluate to determine accuracy.
• Use best professional judgment to decide if
  applicable or relevant and appropriate.
• Applicable? purely objective determination
  based upon review of the jurisdictional
  prerequisites.
• Relevant and Appropriate? Use eight factors
  listed in 40 CFR 300.400(g)(2). Is the
  requirement well suited for site?

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NCP Factors for RA Determinations
The pertinence of each of the following factors
will depend, in part, on whether a requirement
addresses a chemical, location, or action. The
following comparisons shall be made, where
pertinent to determine relevance and
appropriateness (i) the purpose of the
requirement and the purpose of the CERCLA
action (ii) the medium regulated or affected
by the requirement and the medium contaminated at
the CERCLA site (iii) the substances
regulated by the requirement and the substances
found at the CERCLA site (iv) the actions or
activities regulated by the requirement and the
remedial action contemplated at the CERCLA site
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RA Factors cont

• (v) any variances, waivers, or exemptions of the
  requirement and their availability for the
  circumstances at the CERCLA site
• (vi) the type of place regulated and the type of
  place affected by the release or CERCLA action
• (vii) the type and size of structure or facility
  regulated and the type and size of structure or
  facility affected by the release or contemplated
  by the CERCLA action
• (viii) any consideration of use or potential use
  of affected resources in the requirement and the
  use or potential use of the affected resource at
  the CERCLA site.
• Reference 40 CFR 300.400(g)(2)

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ARARs Determinations

• More flexibility in making relevant and
  appropriate (RA) determinations.
• A requirement may be relevant, but not
  appropriate because of the site circumstances.
• In some circumstances only a portion of the
  requirement may be deemed RA and others not
  appropriate (e.g., RCRA Landfill liner for waste
  capped-in-place).
• Requirement must be both relevant and
  appropriate to be considered an ARAR.
• Once requirement determined to be RA, then it
  must be complied with to the same degree as if it
  were applicable.
• EPA has sole responsibility and final decision
  making authority to select or waive ARARs in the
  ROD.

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Documenting ARARs

• Chemical- and Location-specific ARARs/TBCs should
  be included in RI Report or EE/CA for removal
  actions.
• Action-specific ARARs related to each remedial
  alternative must be included in the Feasibility
  Study and EE/CA.
• All ARARs/TBCs must be included in the ROD and
  should be included in Action Memorandum.
• Key ARARs should be described in the ROD for each
  alternative and/or the selected remedy.
• Compliance with ARARs Section in ROD should
  provide summary of the statutory requirement and
  describe site-specific ARARs or explain basis for
  a waiver.
• Detailed listing of the three types of ARARs for
  the selected remedy should be presented in
  Table(s).

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ARARs Description Example

• APPLICABLE OR RELEVANT AND APPROPRIATE
  REQUIREMENTS
• Section 121(d) of Comprehensive Environmental
  Restoration, Compensation, and Liability Act
  (CERCLA) of 1980, as amended, specifies, in part,
  that remedial actions for cleanup of hazardous
  substances must comply with requirements and
  standards under federal or more stringent state
  environmental laws and regulations that are
  applicable or relevant and appropriate (i.e.,
  ARARs) to the hazardous substances or particular
  circumstances at a site or obtain a waiver see
  also 40 Code of Federal Regulations (CFR)
  300.430(f)(1)(ii)(B). ARARs include only
  federal and state environmental or facility
  siting laws/regulations and do not include
  occupational safety or worker radiation
  protection requirements. In addition, per 40 CFR
  300.400(g)(3), other advisories, criteria, or
  guidance may be considered in determining
  remedies (so-called To-Be-Considered TBC
  guidance category).
• In accordance with 40 CFR 300.400(g), the U.S.
  Department of Energy (DOE), Tennessee Department
  of Environment and Conservation (TDEC), and U.S.
  Environmental Protection Agency (EPA) have
  identified the specific ARARs and TBC for the
  selected remedy. The selected remedy complies
  with all ARARs/TBCs directly related to
  implementing the selected actions but will invoke
  the interim-measure ARAR waiver under CERCLA
  121(d)(4)(A). Tables B.1, B.2, and B.3 list
  respectively the chemical-, location-, and
  action-specific ARARs for remedial actions in the
  selected remedy. A brief summary of the remedial
  actions and associated ARARs/TBCs follows.
• CHEMICAL-SPECIFIC ARARs/TBC. Chemical-specific
  ARARs provide health- or risk-based concentration
  limits or discharge limitations in various
  environmental media (i.e., surface water,
  groundwater, soil, air) for specific hazardous
  substances, pollutants, or contaminants and are
  listed in Table B.1 and discussed below.
• Surface Water. Upper East Fork Poplar Creek
  (UEFPC) is designated under Rules of the TDEC
  Chapter 1200-4-4 for Fish and Aquatic Life,
  Recreation, and Livestock Watering and Wildlife
  uses. The numeric ambient water quality criteria
  (AWQC) and narrative criteria for the protection
  of human health and aquatic organisms under Rules
  of the TDEC Chap. 1200-4-3-.03 are ARARs that
  will be addressed as part of the final action for
  UEFPC. Excavations of contaminated surface
  soils/streambed sediments and removal of
  contaminated storm sewer sediments is planned to
  reduce releases of mercury into UEFPC. However,
  the selected remedy will not attain instream the
  Recreation (organisms only) AWQC for mercury (51
  ppt), which is the most stringent criterion for
  mercury.

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ARARs Description Example cont

LOCATION-SPECIFIC ARARs/TBC. Location-specific
requirements establish restrictions on
permissible concentrations of hazardous
substances or establish requirements for how
activities will be conducted because they are in
special locations (e.g., wetlands, floodplains,
critical habitats, streams). Table B.2 lists
federal and state location-specific ARARs for
protection of sensitive resources. Aquatic
Resources. Removal of contaminated streambed
sediments and floodplain soils may involve
diversion of stream flow, bank stabilization,
removal of riparian vegetation, and dredging. All
land-disturbing construction activities (e.g.,
excavation, trenching, soil covers) with the
potential to impact surface waters from storm
water runoff will be designed and implemented
using best management practices and erosion and
sedimentation controls to comply with storm water
control and aquatic resource alteration
requirements. The adverse effects of the
water-related projects on fish and wildlife
resources should be considered as well per the
Fish and Wildlife Coordination Act. Additionally,
the Clean Water Act (CWA) of 1972, as amended,
Section 404 requirements for protection of
aquatic resources at 40 CFR 230.10 must be met if
the action involves any discharges of dredged or
fill material into aquatic ecosystems.
Floodplains. The selected remedy includes
excavation of contaminated floodplain soils and
streambed sediments to reduce releases and
minimize contaminant levels to acceptable
risk-based cleanup levels. Actions must avoid, to
the extent possible, adverse impacts to
floodplains, in accordance with Executive Order
11990 and 10 CFR 1022. Mitigation measures listed
in 10 CFR 1022.12(a)(3), which include minimum
grading requirements, runoff controls, and design
and construction constraints, would be
implemented.
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Chemical-specific ARARs Example
35
Location-specific ARARs Example
36
Action-specific ARARs Example
37
ARARs/TBC Compliance

• Remediation goals shall be measured at
  appropriate locations in the groundwater, surface
  water, soils, air, and other affected
  environmental media. Ref 40 CFR
  300.435(f)(5)(iii)
• Chemical-specific ARARs that were used to
  establish cleanup levels apply only at completion
  of the response action. CERCLA
  121(d)(2)(A)(ii)
• ARARs must be measurable and attainable since
  purpose is to set a standard that an actual
  remedy can attain.
• Lead agency is responsible for ensuring that all
  ARARs identified in the ROD are met during the
  course of the RD/RA. Ref 40 CFR 300.435(b)(2)
• Generally, EPA policy is to attain ARARs and TBCs
  pertaining to contaminant levels or to
  performance or design standards so as to ensure
  protection at all points of potential exposure.
  53 FR 51440

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ARARs/TBC Compliance cont

• Points of compliance for attaining remediation
  levels are established on a site-specific basis
  Ref 55 FR 8713
• For groundwater, remediation levels should be
  attained throughout the plume or at boundary of
  the waste management area.
• Different areas of the plume may reach
  remediation levels at different times, (e.g.,
  leading edge v. upgradient near source).
• For air, selected levels should be established
  for maximum exposed individual considering the
  use of the site and surrounding area.
• For surface waters, selected levels should be
  attained at the point where the release enters
  the water (i.e., end of the pipe).
• Most Action-specific requirements include
  performance standard that can be assessed
  immediately (e.g., store waste in non-leaking
  container with label that I.D. waste type).

39
Lessons Learned

• EPA and State have different roles but common
  goal to identify correct ARARs for the response
  action.
• Agencies must initiate dialogue on potential
  ARARs early in the scoping process to determine
  if difference of opinion exists. Ref 40 CFR
  300.515(d) and (h)
• CERCLA program may consult other regulatory
  Programs and Federal agency subject matter
  experts on unique federal requirements.
• Support agency rarely communicates potential
  ARARs in writing, so may increase EPA role and
  responsibility.
• Overall Need early, prompt, and continuous
  communication on new site information and updated
  remedial alternatives to refine ARARs.

40
References on ARARs

• CERCLA Section 121(d) and NCP at 40 CFR Part 300
  et seq.
• Preamble to Proposed NCP at 53 Fed Reg 51394 at
  pp. 51435 - 51450 (December 21, 1988).
• Preamble to Final NCP at 55 Fed Reg 8666 at pp.
  8741 -8766 (March 8, 1990).
• EPA Compliance With Other Laws Manual Parts I and
  II (EPA 540-G-89-006, August 8, 1988 and August
  1989).
• Compendium of CERCLA ARARs and Fact Sheets and
  Directives EPA Publication 9347.3-15 October
  1991.
• http//www.epa.gov/superfund/policy/remedy/sfremed
  y/arars.htm

41
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42
Useful Fact Sheets on ARARs
Overview of ARARs Focus on ARAR Waivers EPA
Publication 9234.2-03/FS December 1989. CERCLA
Compliance with State Requirements EPA
Publication 9234.2-05/FS December 1989. ARARs
Qs As General policy, RCRA, CWA, SDWA,
Post-ROD Information and Contingent Waivers EPA
Publication 9234.2-01/FS-A June 1991. RCRA
ARARs Focus on Closure Requirements EPA
Publication 9234.2-04/FS October 1989. Summary
of Part II CAA, TSCA, and Other Statutes EPA
Publication 9234.2-07/FS April 1990.
43
Other Guidance on ARARs
Clarification on the Role of Applicable, or
Relevant and Appropriate Requirements in
Establishing Preliminary Remediation Goals under
CERCLA EPA OSWER No. 9200.4-23 August 22,
1997. Rules of Thumb For Superfund Remedy
Selection EPA 540-R-97-013/ OSWER 9355.0-69
August 1997. ARARs Explained in Twelve Pages
EPA OSWER/OERR, June 1992 Role of the Baseline
Risk Assessment in Superfund Remedy Selections
EPA OSWER Directive 9355.0-30 April 22
1991. Guidance on the Consideration of ARARs
During Removal Actions EPA/540/P-91/011/
Publication 9360.3-02 August 1991. Summary of
Key Existing EPA CERCLA Policies for Groundwater
Restoration EPA OSWER Directive 9283.1-33 June
26, 2009.
44
Identification and Determinationof ARARs An
RPMs Perspective

• Case Study Koppers (Newport) Superfund Site
• 300acre former creosote wood treater in northern
  Delaware. Property includes over 100 acres of
  tidal wetlands.
• Site is now in Remedial Design stage
• Site listed on NPL in 1990
• Record of Decision (ROD) signed in 2005

45
Identification and Determinationof ARARs An
RPMs Perspective

• Wetlands Issues
• 300acre property includes over 100 acres of
  tidal wetlands.
• Some remedial action will take place in wetlands
• Wetlands damaged must be restored or replaced
• Endangered Species Survey
• Delaware Endangered Plant found
• Plant is outside areas where RA will occur, so
  can hopefully avoid damaging it

46
Identification and Determinationof ARARs An
RPMs Perspective

• Wetlands Issues (cont.)
• Jurisdictional vs. non-jurisdictional wetlands
• Who should do JD?
• USACE?
• EPA?
• Non-jurisdictional wetlands, if damaged during
  RA, do not require replacement. However, they
  still may be eligible for compensation under NRDA
  process.

47
Identification and Determinationof ARARs An
RPMs Perspective

• Historic Preservation
• Multi-million dollar Cultural Resources
  Investigation ongoing
• State Historic Preservation Office (SHPO)
  consulted
• NHPA was listed as a Major ARAR in Proposed
  Plan and mentioned in parts of the ROD, but was
  unintentionally omitted from the description of
  the selected remedy and ARARs table.
• 2010 ESD to clarify the NHPA is an ARAR

48
Identification and Determinationof ARARs An
RPMs Perspective

• Historic Preservation (cont.)
• Over 24,000 historic artifacts recovered to date
• Site is most significant prehistoric
  archaeological site in State of Delaware
• EPA contacted by tribes with historic ties to the
  site in 2009.
• NHPA consultation process initiated
• Preliminary remedial design and archaeological
  reports shared with tribes
• Consultation process can cause delays

49
Identification and Determinationof ARARs An
RPMs Perspective

• Role of Contractor in Identification and
  Determination of ARARs
• Contractors often include ARARs analysis in
  Feasibility Study
• EPA RPM may use contractors ARARs table as a
  starting point in developing ARARs in ROD

50
Identification and Determinationof ARARs An
RPMs Perspective

• Role of Regional Counsel (Site Attorney) in
  Identification and Determination of ARARs
• EPA RPM will often share an early draft of the
  ARARs table with Site attorney at time of FS, or
  early in the development of the proposed plan
• RPM may share contractors draft ARARs table with
  Site attorney
• RPM will formally request State counterpart
  provide ARARs State wishes EPA to include in
  ARARs table

51
Identification and Determinationof ARARs An
RPMs Perspective

• Recap
• ARARs case Study Koppers (Newport) SF Site, DE
• Discussion of selected ARARs
• Wetland Issues
• Historic Preservation Issues
• Identification and Determination of ARARs
• Role of Contractor
• Role of Regional Counsel (Site Attorney)
• Role of in-house tech support staff

52
Identification and Determinationof ARARs An
RPMs Perspective

• Role of Regional technical support staff in
  Identification and Determination of ARARs
• After initial discussions with Site attorney, EPA
  RPM will often share a draft of the ARARs table
  with regional tech support staff for input on
  laws within their area of expertise
• For example, the ecological risk expert may be
  asked for input on wetlands, endangered species,
  and coastal zone ARARs.

53
Break for Questions
54
Review of ARARs in Feasibility StudiesA BTAG
Coordinators Perspective
55
BTAGs and ARARs

• Technical support resources, specifically BTAGs,
  can provide timely input in the identification of
  ARARs throughout the RI/FS process
• BTAGs often focus on chemical-specific ARARs,
  but are also valuable resources for information
  on location-specific ARARs

56
Many location-specific ARARs relate to the
protection of biological resources
57
BTAG and ARARs

• Regional BTAGs are often in a unique and
  advantageous position to identify
  location-specific ARARs early in the RI/FS
  process
• BTAG members typically represent Federal, and
  sometimes State, agencies who are directly
  responsible for the identified regulations
• BTAG members can typically tap a vast network of
  State and local experts

58
BTAG and ARARs

• Agencies shall notify each other, in a timely
  manner as described in 40CFR300.515(d), of the
  requirements they have determined to be
  applicable or relevant and appropriate.
• The individuals within a regional BTAG provide a
  network which can facilitate the notification
  process.

59
BTAG and ARARs

• Natural settings that are protected by
  location-specific ARARs are typically identified
  during the ecological risk assessment (site
  setting, habitat description)
• Individual species and living resources that are
  protected by location-specific ARARs that occur
  at the site or may be impacted by the site should
  be identified during the ecological risk
  assessment

60
Types of locations include federal wilderness
areas, wildlife refuges, scenic rivers, wetlands,
floodplains, etc.
61
BTAG and ARARs

• Location-specific ARARs may restrict remediation
  activities at sensitive or hazard-prone locations
  such as wildlife habitat and flood plains.
• Practical implications may include things like
  work schedule restrictions (e.g., avoidance of
  work during migration or breeding seasons)

62
Potential Ecological ARARs

• Clean Water Act
• Wetlands (404)
• Water Quality Standards
• Endangered Species Act
• Migratory Bird Treaty Act
• Bald and Golden Eagle Protection Act
• Fish and Wildlife Coordination Act
• Fish and Wildlife Conservation Act

63
Potential Ecological ARARs

• Magnuson- Stevens Act (Essential Fish Habitat)
• National Wildlife Refuge System Administration
  Act
• Marine Mammal Protection Act
• Coastal Zone Management Act
• Floodplain Management Act
• Wilderness Act
• National Forest Management Act

64
Example State Ecological ARARs

• Maryland Nontidal Wetlands Protection Act
• Chesapeake Bay Critical Protection Law (Maryland)
• New York Use and Protection of Waters
• New York Protected Native Plants
• Idaho Stream Channel Alteration Rules

65
Example State Ecological ARARs

• Montana Flood Plain and Floodway Management Act
• Virginia Chesapeake Bay Preservation Act
• Virginia Wetlands Mitigation Compensation Policy
• McAteer-Petris Act (San Francisco Bay Plan)
• New Jersey Pinelands Protection Act

66
Chemical-specific ARARs

• Typical focus is on chemical-specific ARARs,
  rather than location-specific
• ARARs can be based on risks to ecological
  receptors, such as water quality criteria/state
  standards established under sections 303 and 304
  of the Clean Water Act.
• Federal and State AWQC, TMDLs (no?), State
  screening values (no)
• Site-specific standard vs. state water quality
  criteria
• Washington Sediment Management Standards

67
http//rais.ornl.gov/tools/arar_search.php
68
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69
CWA Section 404(with some NEPA)
70
National Environmental Policy Act of 1969(NEPA)

• NEPA asks for sustainable activities, requires
  evaluation of a range of alternatives, disclosure
  of impacts on the natural and social environment,
  public involvement
• NEPA compliance is required for all Federal
  projects
• Superfund RI/FS process is considered functional
  equivalent

71
Clean Water Act Section 404

• Regulates discharge of dredge or fill material
  into Waters of the United States

- Tributaries of waters - Territorial sea -
Adjacent wetlands
- Navigable waters - Interstate waters -
Intrastate waters
72
The Main Points

• Sec 404 requires evaluation of alternative
  actions that meet the purpose and need for the
  project
• Requires the selection of the Least
  Environmentally Damaging Practicable Alternative
• Avoidance of resource is first in sequence
• If impact is unavoidable, minimize impact and
  provide mitigation
• Requires coordination with other Federal and
  State agencies
• No net loss of wetlands
• Requires Public Notice

73
Corps of Engineers Wetlands Delineation Manual
74
Three Primary Requirements for a Wetland

• Wetland Vegetation
• Hydric Soils
• Hydrology
• Wetlands can sit in different locations on the
  landscape, originating from surface water or
  groundwater, in depressions or on slopes

75
Why protect these resources?

• The functions (and values) of aquatic resources
  are important for
• Sediment and nutrient control (water quality
  benefit)
• Retain water (flood control)
• Wildlife habitat, biological productivity

76
Streams, Too

• Methods available to do biological assessments of
  streams, from EPA or states
• Methods for evaluation of physical
  characteristics of streams
• Evaluation of impact, any loss of biological or
  physical integrity (significant degradation)

77
What Sec 404 says about resources

• CWA Sec 404 (b)(1) states that guidelines will be
  prepared
• The guidelines, which are regulation, give the
  explanation of how and why to protect special
  aquatic resources
• Five special aquatic sites under CWA
• Riffle Pools Complexes
• Wetlands
• Vegetated Shallows
• Mudflats
• Coral Reefs

78
Mitigation

• If impact to a resource regulated by Sec 404 is
  unavoidable (ie if it will be filled), mitigation
  is required
• Mitigation should replace the functions and
  values of the resource, or its potential function

79
Mitigation, continued

• Can be in kind or out-of-kind
• Can be on site or off site
• Can be
• Restoration
• Establishment of wetland
• Creation
• Establishment of wetland where one did not
  previously exist
• Enhancement
• Any activity conducted in an existing wetland
  with the goal of manipulating one or more of the
  physical characteristics to incorporate one or
  more wetland functions

80
Mitigation, again

• Some States have developed guidelines for wetland
  replacement
• 21 for forested
• 1.51 for scrub-shrub
• 11 for emergent
• New Mitigation Rule states preference for Wetland
  Banks
• Previously, and in many states, preference for
  in-kind, on (or near)- site

81
Monitoring of Mitigation Success

• Develop measurable success criteria for
  mitigation projects
• Monitoring plan includes methods to collect
  data, responsibilities, deliverables, response to
  non-compliance
• Monitoring for about 5 to 10 years

82
Break for Questions
83
Consulting with NMFS on Fish Habitat Impacts
84
Two Key Mandates

1. Magnuson Stevens Fishery Conservation and
   Management Act essential fish habitat
   provisions.
2. Fish and Wildlife Coordination Act

85
Magnuson-Stevens Act (1996)

• The law that governs the management and
  conservation of federal fisheries.
• - Includes provisions to protect and conserve the
  habitat of those fisheries

86
Essential Fish Habitat - Policy

• . ...to promote the protection of essential
  fish habitat in the review of projects conducted
  under Federal permits, licenses, or other
  authorities that affect or have the potential to
  affect such habitat.
• -- Magnuson-Stevens Act, 1996

87
Essential fish habitat means those waters and
substrate necessary to fish for spawning,
breeding, feeding, or growth to maturity. - -
Magnuson-Stevens Act, 1996
88
Identify and Describe EFH

• Fishery Management Plans must identify and
  describe EFH for each federally managed species
  and life-stage in text and maps.
• EFH is also in state waters.
• EFH maps and text descriptions can be accessed
  through the EFH Mapper tool.

Winter Flounder- Adult (NEFMC Omnibus)
89
EFH MapperTool
(www.nmfs.noaa.gov/habitat/habitatprotection/efh/G
IS_mapper.htm)
90
Thresholds Adverse Effect

• Adverse effect
• Is defined as any impact that reduces the
  quantity and/or quality of EFH.
• Includes direct and indirect physical, chemical
  and/or biological alterations.

91
Requirements for Federal Agencies

• Federal Agencies must
• Evaluate whether their proposed actions may
  adversely affect EFH.
• Prepare a written EFH assessment of any action
  that requires consultation.
• Consult with the Secretary of Commerce with
  respect to any action that may adversely affect
  any EFH identified under this Act.

50 CFR Part 600.915
92
General EFH Consultation Process

• Federal action agency provides NMFS with an EFH
  assessment.
• Within 30 or 60 days, NMFS provides
  conservation recommendations.
• Action agency must respond to NMFS in writing
  within 30 days regarding EFH conservation
  recommendations that were accepted. If not
  accepted, need explanation.

93
Use of Existing Review Procedures

• Encourage use of existing review processes to
  help streamline the EFH consultation process

94
Fish and Wildlife Coordination Act

• More general mandate that applies to all fish
  habitat
• Federal agencies are required to consult with
  NMFS on impacts.
• The process is less specific and does not require
  a federal agency response.

95
Tools and Resources

• Additional Resources
• Website http//www.nmfs.noaa.gov/habitat/habitatpr
  otection/efh/index.htm
• EFH Mapper - http//www.nmfs.noaa.gov/habitat/habi
  tatprotection/efh/GIS_mapper.htm
• Regulations - 50 CFR Part 600.915

96
The Endangered Species Act The Marine Mammal
Protection Act
97
The Endangered Species Act of 1973

• Findings
• Various species of fish, wildlife, and plants
  have been rendered extinct as a consequence of
  economic growth and development untempered by
  adequate concern and conservation
• Other species have been so depleted in numbers
  that they are in danger of or threatened with
  extinction
• Theses species are of esthetic, ecological,
  education, historical, recreation, and scientific
  value to the Nation and its people
• Section 2 of the ESA of 1973 as amended

98
The Endangered Species Act of 1973

• Purposes
• To provide a means whereby the ecosystems upon
  which endangered species and threatened species
  depend may be conserved,
• to provide a program for the conservation of
  endangered and threatened species
• Policy
• All Federal departments and agencies shall seek
  to conserve endangered and threatened species
• And use their authorities in furtherance of the
  purpose of the Act
• Section 2 of the ESA of 1973 as amended

99
ESA Prohibited Acts

• Prohibits, for fish and wildlife
• Import into, or export out of U.S.
• Take within U.S., U.S. territorial seas and
  high seas
• Take harass, harm, pursue, hunt, shoot, wound,
  kill, trap, capture, or collect, or to attempt to
  engage in any such conduct)
• Possess, sell, delivery carry, transport, or
  ship in territorial or high seas
• Deliver, receive, carry, transport, or ship in
  interstate or foreign commerce
• Sell or offer for sale
• Violate any regulation pertaining to endangered
  or threatened species
• Section 2 of the ESA of 1973 as amended

100
ESA Prohibited Acts

• Prohibits, for plants
• Import into, or export out of U.S.
• Remove and reduce to possession from areas under
  Federal jurisdiction maliciously damage or
  destroy on any such area remove, cut, dig up, or
  damage or destroy on any other area in knowing
  violation of any law or regulation of any State
  or in the course of any violation of a State
  criminal trespass law
• Deliver receive, carry, transport, or ship in
  interstate or foreign commerce, by any means
  whatsoever and in the course of a commercial
  activity
• Sell or offer for sale
• Violate any regulation pertaining to endangered
  or threatened species
• Section 2 of the ESA of 1973 as amended

101
ESA Federal Agencies

• Affirmative Conservation Mandate
• All Federal agencies shall, in consultation and
  with the assistance of the Secretary, use their
  authorities by carrying out programs for the
  conservation of endangered and threatened species
• Section 7(a)(1) of the ESA of 1973 as amended
• Duty to Avoid Jeopardy Adverse Modification of
  Critical Habitat
• Each Federal agency shall, in consultation and
  with the assistance of the Secretary, insure that
  any action authorized, funded or carried out by
  such agency is not likely to jeopardize the
  continued existence of any endangered or
  threatened species or result in the destruction
  of adverse modification of designated critical
  habitat
• Section 7(a)(2) of the ESA of 1973 as amended

102
ESA Non-Federal Entities

• Can apply for an exception from the prohibitions
  of take
• If such taking is incidental to, and not the
  purpose of, the carrying out of an otherwise
  lawful activity
• Requires the submission of a conservation plan
  that specifies
• The impact of the taking
• Steps the applicant will take to minimize and
  mitigate such impacts, and the funding that will
  be available to implement such steps
• What alternative actions to such taking the
  applicant considered and the reasons why such
  alternatives are not being utilized and
• Other measures the Secretary may require as being
  necessary or appropriate for purposes of the plan
• Requires the issuing Service complete Section 7
  Consultation
• Section 10(a)(1)(B) and Section 10(a)(2)(A) of
  the ESA of 1973 as amended

103
Other ESA Exceptions

• Exceptions from the prohibitions of take are also
  available for
• Scientific purposes or to enhance the propagation
  or survival of the affected species, including,
  but not limited to acts necessary for the
  establishment and maintenance of experimental
  populations pursuant to Section 10(j)
• Requires the issuing Service complete Section 7
  Consultation
• Section 10(a)(1)(A) of the ESA of 1973 as amended

104
ESA Superfund
Relevant ESA Section Section 7
Action Agency EPA
Consulting Agency FWS - terrestrial freshwater species NMFS - anadromous marine species
Mechanism of Request EPA or their representative contacts the Service(s) for a list of endangered threatened species, their critical habitats EPA requests consultation
Requires Preparation of Biological Assessment (major construction activities), or other similar document evaluating the effects the federal action would have on listed species
Recommended Engage Service(s) in technical assistance prior to submittal of request for consultation
Outcome Biological Opinion or Concurrence Letter that contains an assessment of the impacts of the fishery on T/E Species
Consultation Timeframes Depends largely on time spent in technical assistance. After initiation Informal 30 days Formal 135 days (90 days consultation 45 days for Biological Opinion)
105
The Marine Mammal Protection Act of 1972

• Findings and Policy
• Certain species of marine mammals are, or may be,
  in danger of extinction or depletion as a result
  of human activity
• Such species and populations should not be
  permitted to diminish beyond the point they cease
  to be a significant functioning element in the
  ecosystem, or beyond their optimum sustainable
  population
• There is inadequate knowledge of the ecology and
  population dynamics of marine mammals
• Marine mammals should be protected and encourage
  to develop to the greatest extent feasible
• The primary objective of their management should
  be to maintain the health and stability of the
  marine ecosystem
• Section 2 of the MMPA of 1972 as amended

106
MMPA Prohibition on Taking

• Prohibits taking harassment, hunting,
  capturing or killing, or attempting to harass,
  hunt, capture or kill any marine mammals
• Permitted exceptions
• Scientific research
• Public display
• Photography for education or commercial purposes
• Enhancing the survival or recovery of a species
  or stock
• Commercial fishing
• Subsistence harvest
• Other specified activities within a specified
  geographical region
• Section 101 and 102 of the MMPA of 1972 as
  amended

107
MMPA Incidental Take

• Incidental take allowed for small numbers of
  marine mammals,
• For specified activities within a specified
  geographic region
• After public notice opportunity for public
  comment
• A finding that the total taking will have a
  negligible impact on the species or stock
• And will not have an unmitigable adverse impact
  on subsistence uses
• Section 101(a)(5)(A) of the MMPA of 1972 as
  amended

108
MMPA Incidental Take

• The authorization shall prescribe
• The permissible methods of taking by harassment
• Other means of least practicable impact on the
  species, its habitat
• The measures necessary to ensure no unmitigable
  adverse impact on the species for subsistence
• Monitoring and reporting requirements
• Section 101 of the MMPA of 1972 as amended

109
Types of MMPA Authorizations
Letter of Authorization (LOA) Incidental Harassment Authorization (IHA)
MMPA Section 101(a)(5)(A) 101(a)(5)(D)
May Authorize Harassment or Mortality Harassment Only
Mechanism of Request LOA application IHA application
Structure Requires promulgation of regulations Valid for 5 Years Includes 2 comment periods (usually 30 60 days 0 days for annual LOAs) No rulemaking Valid for up to 1 year Includes one 30-day comment period
Processing Time Not prescribed by statute (18 mo) 120 days by statute
May require the issuing Service complete Section
7 Consultation
Slide 110